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Special Education in the Modern Age:The Shifting Categories of ED, OHI and

SLD

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Overview

ED Eligibility (Attempting) to define OHI Factors related to SLD

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What is an Emotional Disturbance? Federal Definition

A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance

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What is an Emotional Disturbance? CA definition

Because of a serious emotional disturbance, a pupil exhibits one or more of the following characteristics over a long period of time and to a marked degree, which adversely affect educational performance

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What is an Emotional Disturbance? The Five Factors

1. An inability to learn that cannot be explained by intellectual, sensory, or health factors

2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers

3. Inappropriate types of behavior or feelings under normal circumstances

4. A general pervasive mood of unhappiness or depression

5. A tendency to develop physical symptoms or fears associated with personal or school problems

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Diagnosed Mental Illness and ED Mental Illness Defined

Medical condition that disrupts thinking, feeling, mood, ability to relate to others, and daily functioning

(National Institute of Mental Health)

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Diagnosed Mental Illness and ED Not required to find student eligible

under category of ED Diagnosis does not automatically

qualify student for special education Symptoms may trigger Child Find

obligations

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Student v. Saddleback Valley USD(OAH 2011)

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Facts 16 year-old diagnosed with mild

depression, ODD and mood disorder Private psychologist recommended

permission to make-up missed assignments, but not special education assessment

Parent requested assessment “Student Study Team” determined

interventions could be implemented in general education settingStudent v. Saddleback Valley USD (OAH

2011)

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Facts Assessment postponed Dissatisfied parent unilaterally enrolled

student in RTC Student eventually assessed and

qualified under OHI and ED

Student v. Saddleback Valley USD (OAH 2011)

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Issues Violation of Child Find duties Parent alleged District should have

assessedFollowing receipt of psychologist

recommendationFollowing parent’s request for assessment

Student v. Saddleback Valley USD (OAH 2011)

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Decision No Child Find violation

Psychologist email alone insufficient to trigger Child Find

Parent agreed to general education interventions

Parent did not notify school of dissatisfaction before unilaterally enrolling student in RTC

Student v. Saddleback Valley USD (OAH 2011)

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What is ED?Student v. Placentia-Yorba Linda Unified

School Dist. (OAH 2009) ED is not medical diagnosis (under DSM-IV) ED is “legal category created by Congress to

distinguish a narrow range of pupils with emotional problems who are eligible for special education services”

Criteria regarding emotional disorders in medical field are different than educational criteria for ED

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#1 - Inability to Learn Designed to rule out other reasons Student v. Lakeside Joint Elementary

School Dist. (OAH 2008)Student with “attachment disorder” (per

parents)Declining STAR scores, but high average

WISC scores and no severe discrepancyStudent asked for help when neededStudent had ability to learn

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#1 - Inability to Learn Student v. Placentia-Yorba Linda

Unified School Dist. (OAH 2009) Student with (at least) mood disorder-

NOS, including significant depressionCognitively bright, capable of learningLowered academic performance for two,

short isolated periodsNot enough to show inability to learn

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#2 - Inability To Build Or Maintain Satisfactory Interpersonal Relationships Occurs in multiple settings with peers and

adults Lack of sympathy, empathy toward others Inability to establish, maintain friendships Excessive physical, verbal aggression, etc. Not an issue of getting along with others

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#2 - Inability to Build or Maintain Satisfactory Interpersonal Relationships Saddleback: Choosing friends who are

a bad influence does not satisfy criteria Lakeside: Positive relationships with

teachers show factor does not apply

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#3 - Inappropriate Types of Behavior or Feelings Under Normal Circumstances Behaviors or feelings that are strange or

unusual (in comparison with others in same circumstances)

Hallucinations or bizarre behavior not required Could be acting out or withdrawal behaviors Does not include willful and understood

behaviors (e.g., ODD or conduct disorders) Consider whether circumstances are “normal” . .

.

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#3 - Inappropriate Types of Behavior or Feelings Under Normal Circumstances Student v. Ravenswood City SD (OAH 2008)

Serious behavior problems (sexual assault, fighting, assault, defiance, profanity, and bringing a gun to school) insufficient to meet criteria

Torrance USD v. E.M. (C.D. Cal. 2008)Inappropriate reaction to everyday events satisfies criteria

Student v. Los Angeles USD (SEHO 1999)Expected behavior from a child of same age does not satisfy criteria

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#4 - General Pervasive Mood of Unhappiness or Depression Actual, chronic, persistent symptoms

of depression Observable in school setting (and other

situations) Not a natural reaction to a traumatic

event

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#4 - General Pervasive Mood of Unhappiness or Depression Saddleback: Diagnosis that presents

with unhappiness or depression does not automatically fulfill criteria

Student v. Los Angeles USD (OAH 2007): Student need not meet the DSM-IV criteria for depression to fulfill criteria

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#5 - Tendency to Develop Physical Symptoms or Fears Associated with Personal or School Problems Physical symptoms that are excessive

and chronic Could manifest as severe anxiety,

phobias, panic attacks, tics, headaches, etc.

Not due to biologic or medical conditions

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#5 - Tendency to Develop Physical Symptoms or Fears Associated with Personal or School Problems Student v. Capistrano USD (OAH 2011)

”test anxiety” must impact ability to do well on test to satisfy criteria

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What is a "Long Period of Time"? Letter to Anonymous (OSEP 1989)

Two-nine months Student v. Capistrano USD (OAH 2007)

Minimum of six months and with no response to behavioral interventions

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What is “To a Marked Degree"?Pervasive and Intense Student v. Capistrano USD (OAH 2007)

Pervasive means exhibits across more than one domain (home, school, community)

Intense means must produce distress to student or others and must be related to emotional disturbance

Letter to Anonymous (OSEP 1989) Examine frequency, duration and intensity of

student’s behavior in comparison to behavior of peers and/or school and community norms

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What is "Adversely Affects"? Condition must render student unable

to benefit from education regardless of degree of intervention

Document that poor performance not due to attendance or lack of motivation

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Emerging EligibilityTorrance USD v. E.M. (C.D. Cal. 2008) Facts

Student in GATE program Classroom behavioral issues noted over several years Parents separated, was placed in foster home (Two-hour

commute) In 6th grade, punched another student and was expelled

Issue Child Find

Ruling Student’s behaviors initially coincided with stressful life events,

but Continued to manifest in a variety of settings, over a long period

of time and were resistant to behavioral interventions District should have assessed for ED and found student eligible

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Practice Pointer

ED eligibility may emerge over timeWatch for behavioral issues that continue

to escalate and/or fail to respond to interventions

Reassessment for ED eligibility may be necessary

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ED and Young Students Sometimes, there is hesitation to label

young students as ED Makes sense to adjust period for young

students Cannot have “policy” of refusing to find

young students eligible as ED

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“Acting Out” may Indicate EDStudent v. Compton USD (OAH 2008) Facts

Kindergarten student performing above grade level academically, but exhibiting aggressive behaviors

First assessment focused on ADHD, Student eligible under OHI

(At age 5) Student began telling teacher was going to kill himself because he was “bad”

Second assessment, found eligible under ED Ruling: District should have assessed

Student for ED as part of first assessment

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“Acting Out” may Indicate EDStudent v. La Mesa-Spring Valley SD (OAH

2010) Facts

Student “kicked out” of daycare Hospitalized at age 3 for self-injurious &

aggressive behaviors Diagnosed with anxiety Enrolled in district preschool program:

Exhibited hitting, kicking and scratching, using profanity Able to access preschool program Assessed and found ineligible

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“Acting Out” may Indicate ED Facts

In kindergarten, behaviors included Crawling around, talking in strange voices,

hitting others, using profanity, scratching herself, banging head on wall, stabbing self with scissors

Behavioral interventions were ineffective District assessed and found eligible as ED

Parent would not consent to SDC placement District filed due process complaint

Student v. La Mesa-Spring Valley SD (OAH 2010)

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“Acting Out” may Indicate ED Ruling

District showed was inappropriate to maintain Student in general education setting even with significant supports

Student failing to derive any academic or non-academic benefits

Adversely impacted ability of other student to learn and ability of teacher to teach

Student v. La Mesa-Spring Valley SD (OAH 2010)

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Social Maladjustment v. ED What Is Social Maladjustment?

Not defined in law

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Case #1 Torrance USD v. E.M. (C.D. Cal. 2008)

“Student acts in deliberate non-compliance with known social demands or expectations”

Socially maladjusted students do not qualify as ED based on “social maladjustment”

BUT . . . socially maladjusted student could also be ED

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Case #2 Eschenasy v. New York City Dept. of Ed.

(S.D.N.Y. 2009) Facts

Student privately evaluated and diagnosed with mood disorder and borderline personality disorder traits

Student used drugs, cut class, and was repeatedly suspended and expelled

Attended three schools in 10th and 11th grades

Parent placed Student in restrictive RTC

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Case #2 Facts

Parent requested special education assessment

District refused to travel for assessment, closed case

Parent requested an IEP meeting, based on private assessment and RTC placement

District found student ineligible Behavior was delinquent, due to conduct

disorderEschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

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Case #2 Decision: HO found Student was socially

maladjusted, but also qualified under ED due to unhappy/depressed mood and inappropriate behaviorSuicide attempts/self-injuryFailing grades impeded learningPrevalence of behavior throughout high

school District ordered to reimburse for RTC

placementEschenasy v. New York City Dept. of Ed. (S.D.N.Y. 2009)

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Social Maladjustment v. ED Look for the purpose of the conduct – is

this purposeful behavior? rebellious? deliberate?

Don’t miss self-injury or suicidal ideation In the case of substance abuse, is it

masking behavior? Substance Abuse Subtle Screening InventoryDoes student’s behavior/academic

achievement change when no access to drugs/alcohol?

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Substance Abuse v. ED Student v. Tamalpais Union H.S. Dist.

(OAH 2012) Facts

Student in blended program with related counseling services

Student suspended for marijuana possession and placed in juvenile hall

Before release, parents requested residential placement

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Substance Abuse v. ED Facts

Psycho-educational assessment revealed no identifiable mental illness, but characteristics of ED and substance abuse disorder

AB 3632 assessment supported placement in blended program with therapy; primary issues were related to oppositional defiance disorder and substance abuse; no masking behavior

District continued to offer blended program

Student v. Tamalpais Union H.S. Dist. (OAH 2012)

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Substance Abuse v. ED Ruling: District not responsible for

residential placement when primary issue is substance abuse

Progress in RTC and juvenile hall due to lack of drug use in those settings

Student v. Tamalpais Union H.S. Dist. (OAH 2012)

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Are Bullies Emotionally Disturbed? Bullying Behavior may Trigger Child Find

Obligations School Bd. of the City of Norfolk v. Brown

(E.D.V.A. 2010). Repeated threats and harassment toward others put District on notice of Student's suspected disability

Bully may be Eligible as ED Birdville Independent School Dist. (SEA TX 2011).

Long-standing behavioral problems, including bullying classmates, misinterpreting others, and threatening to harm qualified student as ED

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Assessment/IEP Team Tips Directly addresses five criteria for ED

and aligns results to criteria in report Address emerging behaviors with

general education supports; document the impact of those interventions, but do not delay in assessing

Look at functioning in variety of settings: home, school, and community

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Assessment/IEP Team Tips Placement is IEP team decision; don’t

be concerned about placement in the assessment process

Consider inclusion of nurse on IEP team Do not limit yourself to a single

possible eligibility category

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Other Health Impaired (“OHI”)What is OHI? Having limited strength, vitality, or

alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that Is due to chronic or acute health problems;

and Adversely affects a child’s educational

performance (34 C.F.R. § 300.8(c)(9).)

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OHI Medical diagnosis not required Diagnosis of a chronic or acute health

problem alone will not sufficeStudent v. Konocti USD (OAH 2010)

ADHD diagnosis alone not enough Student could control behavior and made

educational progress

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OHI Mental illnesses qualify under OHI if

they limit strength, vitality, or alertness

Auditory processing disorder considered an OHI?

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Does the Disability Actually Impact Vitality, Alertness, Strength?Placentia-Yorba Linda Unified School

Dist. (SEHO 1995) Student with chemical sensitivities did

not show diminished strength, vitality or alertness

Inquiry ended there HO need not consider issue of adverse

effect on educational performance

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What is an “Adverse Effect”? Not defined by law Consider both academic and non-

academic performance

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Adverse Effect Student v. Bonita USD (OAH 2006)

Student with ADHD and declining grades not eligible because no decreased vitality, strength or alertness that impacted education

Declining grades due to lack of motivation Student v. San Francisco USD (SEHO 2005)

Student not eligible because limited vitality in afternoons could be addressed with accommodations in general education setting

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Physical v. Psychological and “Feeling” Limited Forest Hills Public Schools (SEA MI

2012) No requirement that limitation be physical in nature

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When is it OHI? When is it ED? Mental Illness: May not meet the eligibility

requirements for ED, but if adversely affects educational performance, student may be eligible under OHI(Student v. San Diego USD (OAH 2008)

Impact of Disorder: Anxiety/panic attacks may not meet the criteria for ED, but may tire child out, leading to limited vitality and meeting the criteria for OHI(Student v. Poway USD (OAH 2009)

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OHI Assessment Tips Health condition (alone) is not

sufficient for OHI Is student exhibiting limited vitality,

strength or alertness? If so, is Student’s educational

performance adversely impacted Could impact be addressed in the general

education setting?

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Specific Learning Disability (“SLD”)What is SLD? Disorder in one or more of the basic psychological

processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, write, spell, or to do mathematical calculations

Includes conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia

Does not include: Learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage

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Determining SLD Eligibility Severe Discrepancy Observation Response to Intervention Inappropriate Instruction/Other Factors

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Severe Discrepancy Ford v. Long Beach USD (9th Cir. 2002)

Collaborative, data driven approach IDEA does not compel the use of specific

measures of either ability or achievement

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Observation IDEA requires observation of students

in learning environment, both before referral and by member of IEP team after referral in determining existence of SLD

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Response to Intervention Permissive, not mandatory, method to

establish eligibility under SLD Eligibility determinations cannot be

based solely on RTI

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Inappropriate Instruction/Other Factors Consider whether the student’s under-

achievement is due to other factors Lack of motivation

Can be manifestation of disabilityHome/transition issues Other disabilities (including ED) Inappropriate instruction

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Special Considerations ADHD can be SLD eligible if there is both a

processing disorder and a severe discrepancy (Norton v. Orinda SD (9th Cir. 1999)

E.M. v. Pajaro Valley USD (9th Cir. 2011) When valid tests produce conflicting scores

consider all relevant material to make reasonable choice in determining whether a ‘severe discrepancy’ exists

Student with processing disorder must still exhibit severe discrepancy to qualify under IDEA

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SLD Assessment/IEP Team Tips Data! Collect data from classroom

observations, teachers, staff, parents and providers

Look for patterns of weakness Consider developmental history Consider having speech/language

practitioner on the IEP team

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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